The Fallacy of Cross-Regime Harmonization: An Upstream Perspective on the Application of the Necessity Test in the WTO and ECHR Systems (Marco Bocchi)

This article challenges the constitutional narrative built around the alleged progressive constitutionalization of international law. According to this doctrine, one crucial element that binds together international tribunals is the exercise of judicial balancing. The widespread diffusion of this analytical process in international legal disputes take place through various forms, ranging from proportionality analyses and margin of appreciation assessments to necessity tests. However, this is only one side of the coin and it can only partially explain the recent developments of international legal practices. This paper aims at showing the other side ofthe coin, which is the fallacy of cross-regime harmonization and displaying the lack of judicial convergence on the interpretation of the same general principles. With the intent to illustrate the mentioned claim in practical terms, this article proposes to analyse the diverging application of the necessity test in the human rights and trade contexts.